[EL] Fwd: RE: Where have the federalists gone? Obamacare, King, and the Court
Rick Hasen
rhasen at law.uci.edu
Mon Mar 2 10:02:54 PST 2015
response from Abbe
-------- Forwarded Message --------
Subject: RE: Where have the federalists gone? Obamacare, King, and the
Court
Date: Mon, 2 Mar 2015 17:57:20 +0000
From: Gluck, Abbe <abbe.gluck at yale.edu>
To: Sean Parnell <sean at impactpolicymanagement.com>, 'Rick Hasen'
<rhasen at law.uci.edu>, law-election at uci.edu <law-election at uci.edu>
Mr. Parnell- The loss of federal funds, while devastating to
individuals, is not the loss I was talking about. It is the near-certain
collapse of 34 state insurance markets based on a choice the states were
making when they read the statute, like everyone else, to give them a
choice to run their own exchanges or not without penalty. This is
because the ACA’s insurance reforms apply nationwide, regardless of a
state’s choice with regard to exchange management. As far as the
Medicaid language goes, the rule is that conditions or intrusions on the
states have to be unmistakably clear from the text of the statute. The
King challengers are pressing a textualist offense, but the textualist
rules require a clear statement (not merely that it /might/ be plausible
that Congress /might/ have intended something but didn’t say so—which I
do not think is the case here, regardless. Indeed, as I elaborated
below, it is implausible to think that Congress designed the federal
fallback here with the intention that the whole thing collapses as soon
as it kicks in. ). Moreover, textualists draw great significance when
Congress speaks clearly about an effect of the law in one part of the
statute and doesn’t in another part. That’s the textualist doctrine—and
that is the doctrine the challengers say they are litigating under.
Happy to discuss more in an individual conversation.
Best regards,
Abbe
Abbe R. Gluck
Professor of Law
Yale Law School
(203) 432-6703
*From:*Sean Parnell [mailto:sean at impactpolicymanagement.com]
*Sent:* Monday, March 02, 2015 12:41 PM
*To:* 'Rick Hasen'; law-election at uci.edu; Gluck, Abbe
*Subject:* RE: Where have the federalists gone? Obamacare, King, and the
Court
Whoops, my apologies, for some reason I thought that was Rick. My bad!
Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA 22315
571-289-1374 (c)
sean at impactpolicymanagement.com <mailto:sean at impactpolicymanagement.com>
*From:*Rick Hasen [mailto:rhasen at law.uci.edu]
*Sent:* Monday, March 02, 2015 12:40 PM
*To:* Sean Parnell; law-election at uci.edu <mailto:law-election at uci.edu>;
Gluck, Abbe
*Subject:* Re: Where have the federalists gone? Obamacare, King, and the
Court
It's not me---It's Abbe Gluck. Please see the author of each post.
On 3/2/15 8:23 AM, Sean Parnell wrote:
Rick suggests below that the reading of plaintiffs in /King v.
Burwell/ would amount to “the most draconian modern statute ever
enacted by the U.S. Congress that included a role for the states.”
The draconian-ness, presumably, would be regarding the loss of $25
billion in annual subsidies distributed through the federal
exchanges. Perhaps. But I think it’s worth noting the more draconian
nature of the original Medicaid expansion language in PPACA, namely
that states who failed to comply with the expansion would lose ALL
of their current Medicaid funding, which if memory serves correct is
roughly $235 billion each year at stake.
The fact the PPACA explicitly, in regards to Medicaid expansion,
told states to get on board or lose all of their funding, also
suggests it’s hardly beyond the pale that a similar thought process
led them to include a punishment for states that don’t establish
their own exchanges, such as making them ineligible for federal
subsidies.
There are reasonable arguments about what Congress did or did not
intend (my favorite being that Congress did not intend PPACA to
become law as written in the first place, so let’s enforce /that/
intent), but I have a hard time putting much stock in the argument
that Congress would never have dreamed of denying a benefit to some
citizens if their state didn’t go along, given that Congress did
exactly that in drafting the Medicaid section of the law.
Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA 22315
571-289-1374 (c)
sean at impactpolicymanagement.com <mailto:sean at impactpolicymanagement.com>
Where have the federalists gone? Obamacare, King, and the Court
<https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fp-3D70582&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=wEQoJl2d1ZsJqcuWn2EjSdd6NXP0gQ_L0He6g1pOl6Q&e=>
Posted onFebruary 27, 2015 7:14 am
<https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fp-3D70582&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=wEQoJl2d1ZsJqcuWn2EjSdd6NXP0gQ_L0He6g1pOl6Q&e=>by*Abbe
Gluck*
<https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fauthor-3D15&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=oU2mqsKuIyzjRFFKDYxAGWvQGcMdW6QZLqF3TGN_xiA&e=>
The Obamacare case, /King v. Burwell/, which the Court will hear
next week, has deep importance not only for health care but also for
law. I have previously detailed why the case istextualism’s big
test
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.scotusblog.com_2014_11_symposium-2Dthe-2Dgrant-2Din-2Dking-2Dobamacare-2Dsubsidies-2Das-2Dtextualisms-2Dbig-2Dtest_&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=nHVWDiHuJvSC_w-cnGABGppMgrneAqaE_r0HFZ-rNP4&e=>.
Today, in/Politico/, I explain why the case is also fundamentally
about state rights. The question is whether the Court’s federalism
doctrines–which, let’s not forget, the Court applied against the
Government in the last Obamacare case–whether these federalism
doctrines, like the Court’s textualist rules, are sufficiently
legitimate and objective such they will apply regardless of which
side they happen to support, even in a case as politicized as this
one. After all, isn’t that the point of have a rule of law in the
first place?
Here is an excerpt and alink
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.politico.com_magazine_story_2015_02_king-2Dv-2Dburwell-2Dstates-2Drights-2D115550.html-23.VPCGCU0o-5FDc&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=1r3M4wFqTfqb3Yw9QRnnY0fcpqovZpBT4zKDbr65PHo&e=>.
The issue in/King/is whether the ACA penalizes states that opt out
of setting up their own health insurance exchanges and, instead, let
the federal government do it for them. The challengers have seized
on four words in this 2,000-page law that, they contend, contain a
dramatic consequence for the 34 states that have made this choice
and allowed the federal government to step in: the loss of critical
insurance subsidies that make health insurance affordable and
sustain the insurance markets under the law. Without the
subsidies—which are estimated at $25 billion across the 34
states—more than eight million Americans will likely lose their
insurance. And, as a result, the insurance markets in those states
will face near-certain collapse.
The challengers maintain that the case is simply about reading plain
language. (I have detailedelsewhere
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.scotusblog.com_2014_11_symposium-2Dthe-2Dgrant-2Din-2Dking-2Dobamacare-2Dsubsidies-2Das-2Dtextualisms-2Dbig-2Dtest_&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=nHVWDiHuJvSC_w-cnGABGppMgrneAqaE_r0HFZ-rNP4&e=>why
their hyper-literal reading of four words out of context is anything
but plain and is not how the Supreme Court usually reads statutes.)
But/King/is about a lot more than this. The case is about
federalism—the role of states in our national democracy. The reason
the challengers don’t want anyone to realize that is because the
very text-oriented justices to whom they are appealing are the exact
same justices who have consistently interpreted federal laws to
protect states’ rights. And the challengers would read the ACA in
the opposite way—as having devastating implications for the states.
The challengers’ interpretation turns Congress’s entire philosophy
of states’ rights in the ACA upside down. Congress designed the
exchanges to be state-deferential—to give the states a choice. But
under the state-penalizing reading that challengers urge, the ACA—a
statute that uses the phrase “state flexibility”/five///times—would
be the most draconian modern statute ever enacted by the U.S.
Congress that included a role for the states. What’s more, if
interpreted as the challengers hope, the ACA would have been
debated, enacted and implemented for two whole years under intense
public scrutiny, including the scrutiny trained on it during the
last major constitutional challenge in the Supreme Court in 2012,
without anyone—no state, congressman or blogger—noticing these
consequences or objecting to them.
Abrief
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.americanbar.org_content_dam_aba_publications_supreme-5Fcourt-5Fpreview_BriefsV5_14-2D114-5Famicus-5Faffirm-5Fva.authcheckdam.pdf&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=fzVOUWIM-kwWGPyZq_X-vEDQFPUQ5SwuHZxcC-E_lxE&e=>filed
by Virginia and more than 20 other states attests that any clue of
the dramatic penalty the challengers have read into the statute was
entirely lacking. In the end,/King///is about whether an invented
narrative that only emerged for purposes of this case should be
permitted to work the greatest bait and switch on state governments
in history.
Read
more:http://www.politico.com/magazine/story/2015/02/king-v-burwell-states-rights-115550.html#ixzz3SxSbOrL4
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.politico.com_magazine_story_2015_02_king-2Dv-2Dburwell-2Dstates-2Drights-2D115550.html-23ixzz3SxSbOrL4&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=DxMSShOPJtpoq-jC5ExdMu16jfq8rKrVe67A7FKkG7o&e=>
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
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